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NCC Update

NCC Update, April 2002

Bruce Craig, April 2002

Supreme Court to Hear Copyright Extension Case

On February 19, 2002, the Supreme Court announced that when its term begins next October, it would take up Eldred v. Ashcroft and decide whether the 1998 Copyright Term Extension Act that grants protection of existing copyrights by an additional 20 years is constitutional. The case is perhaps the most important copyright matter the Court has taken up in decades in part due to the ramifications that the decision will have on the distribution of creative and historical works in the digital age. In particular, the Court's decision may have broad implications for historians and archivists. It could result in thousands of classic films, books, and music that first appeared in the 1920s and 1930s becoming freely available on the Internet and elsewhere.

When Congress enacted the nation's first copyright act in 1790, the law protected written works of authors up to 28 years. That protection remained in effect until 1909 when Congress doubled the limit to a possible 56 years. Since the 1960s, Congress has repeatedly extended the maximum term, largely because of pressure from giants of the music and movie industries. In all, Congress has extended the period of copyright protection some 11 times over the last four decades, thus, in the words of one copyright expert, "transforming a limited monopoly into a virtually limitless one."

In 1998 Congress passed yet another copyright extension bill—the so-called Sonny Bono Copyright Term Extension Act (CTEA). That law added 20 more years to most copyrights thereby preventing a large range of works from falling in the public domain. Under the Bono Act, films are protected for 95 years after their release, and works by authors and composers are covered for 70 years after the death of the individual creator.

Proponents of the Bono Act believed it was necessary to put the United States on equal footing with European law and to assert that Congress has the right to set the terms of copyright coverage. But some small publishers, archivists, librarians, and other Internet based businesses, filed suit arguing that by passing extension after extension Congress undermined the vision of the framers of the Constitution who did not intend copyright to extend indefinitely. Opponents of the Act, like Mark Lemley, law professor at the University of California at Berkeley, believe that "without some check on congressional power, it is unlikely that any of the cultural and historical works of the first half of the 20th century will ever enter the public domain."

Statistics provide some ammunition for those seeking to overturn the Bono Act. Millions of original works are copyrighted each year. However, after the passage of time, few works actually remain in circulation. In 1930, for example, 10,027 books were published in the United States, yet today only 174 of them remain in print. Opponents of the copyright extension see a potential market for some of these works, but current law prevents anyone but the original copyright holders from reprinting them or otherwise making them available in digital or other formats.

Shortly after the Bono Act went into effect, Eric Eldred, an individual who runs an Internet library that posts works in the public domain, brought suit. His case, known as Eldred v. Ashcroft (01–618) challenges the constitutionality of the new copyright act. Eldred believes that old books, songs and movies should flow continuously into the public domain and that the present law prevents published material from entering that domain.

Thus far, however, Eldred and his supporters have not fared well in court; in rulings by both a federal district and an appellate court, Congress's right to extend copyright laws has been upheld. Most recently, the U.S. Court of Appeals for the District of Columbia Circuit found, in a 2 to 1 decision, that Congress indeed had the authority to extend copyright and found that the law actually gave copyright holders "an incentive to preserve older works." The Court held that retroactive term extensions clearly are within congressional authority under the copyright clause and that the 20–year term extension did not violate the First Amendment.

On December 13, 2001, the American Library Association, the American Association of Law Libraries, the Association of Research Libraries, the Digital Future Coalition, the Medical Library Association, and the Society of American Archivists filed an amici curiae brief in support of a request that the U.S. Supreme Court exercise its discretion to take the case. They urged the Supreme Court to hear and to overturn the decision by the federal appeals court.

The brief to the Supreme Court argues that the practical result of copyright term extension is that it "diminishes the ability of the public to be educated, to be entertained, and to engage in debate. Through excessive copyright extension, copyright owners will continue to restrict access to and exert censorial control over millions of works, thereby chilling discourse and cultural development long after incentives for production have ceased to operate."

Those challenging the copyright extension are represented by Lawrence Lessig, a Stanford University law professor considered one of the foremost legal experts on the Internet and the law. The opponents of the extension are expected to argue that the intent of the founding fathers has been subverted. Government lawyers will probably assert that there is no legal precedent restricting Congress's ability to extend existing copyright. Court insiders believe the Supreme Court justices will decide the case by focusing narrowly on the question of whether Congress exceeded its authority when it passed the most recent copyright extension.

According to Mark Greene, a member of the Society of American Archivist's council, "The growing reluctance of publishers to risk printing even excerpts from unpublished material without clear copyright permission has begun to significantly hamper scholars' ability to use archival sources. The last Civil War veterans died in the 1950s; under CTEA copyright, protection in unpublished letters from that war could endure until 2030. How such ever–lengthening copyright protection helps 'to promote the Progress of Science and useful Arts,' as the Framers intended, is anyone's guess."

Several national historical associations including the American Historical Association are considering filing briefs (or signing on to briefs) supporting Eldred. According to Greene, the case presents "an opportunity for archivists, librarians, historians, and others to explain their view on the importance of the public domain and the harm that flows from keeping works almost perpetually locked up."

Smithsonian Fires 45 Employees in Budget Cutting Move

Faced with declining revenues as a result of a dramatic drop in visitor numbers attributed to the September 11 terrorist attacks on New York and Washington D.C., the Smithsonian Institution fired some 45 employees on February 13, in a budget cutting move designed to help arrest a projected $9 million revenue shortfall. This was the second dismissal of employees in six months. Since September 11, some 1 percent of the Smithsonian's total workforce has been dismissed. All of the employees fired in the latest cost–cutting move worked in various administrative support areas as accountants, visitor information specialists, and public information officers.

According to Smithsonian spokesperson, Linda St. Thomas, "It was with great sadness that we eliminated any positions. But with so much of our budget tied up in salaries we had no alternative but to cut jobs." Originally, the projected shortfall was estimated to be in the $5 million range, but figures were revised upward yesterday to $9 million. In addition to the firings, over 70 current vacancies Institution–wide will not be filled. The total cost–saving move will save an estimated $8.6 million – the balance of the needed cuts will come in other budget lines such as travel and supplies.

The Smithsonian receives about 70 percent of its budget from the federal government. Private funds donated to the various museums are usually earmarked for specific exhibitions, targeted capitol improvements, or education programs. Like so many museums across the country, Smithsonian fund–raising officials have had little success in finding donors to cover costs associated with routine operations.

House Hearing on Museum and Library Services Act

On February 14, the House Subcommittee on Select Education of the House Education and the Workforce Committee held a hearing on the reauthorization of the Museum and Library Services Act. The Act is slotted to expire at the end of 2002. The hearing was conducted by Representative Pete Hoekstra (R-Mich.), chair of the Select Education Subcommittee. He was assisted by the ranking minority member Representative Tim Roemer (D-Ind.) and Representatives Major Owens (D-N.Y.), Robert Scott (D-Va.), Susan Davis (D-Calif.), Rush Holt (D-N.J.), and Patrick Tiberi (R-Ohio).

Testifying on behalf of the Institute of Museum and Library Services (IMLS) was Robert Martin, the new director of the institute. Appearing on behalf of libraries and museums were Linda Yoder, Director of the Nappanee Indiana Public Library; Lucille Thomas, vice chair of the Brooklyn Public Library Board of Trustees; and Steven Hamp, president of the Henry Ford Museum and Greenfield Village in Dearborn, Michigan.

Martin, who has only recently been appointed director of IMLS, expressed his gratitude to the subcommittee for holding the hearing. He explained how the Institute of Museum and Library Services, which Congress created in 1996, is a successful partnership. Martin said that citizens must be both educated and informed and museums and libraries assist in performing those vital functions. He pointed out that federal dollars serve a critical role in enhancing services at the local level and detailed some digital technology projects that could not have been accomplished without the impetus of federal funds.

A panel of several "friendly" witnesses testified as well. Yoder described a Library Services and Technology grant that her library had participated in that "allowed a consortium of 10 small libraries in northern Indiana to hire technical assistance, sharing the same service provider among the participating libraries." Yoder stated that without the grant her library might still be years away from using technology. Thomas detailed the many programs her large Brooklyn Public Library system provides for the community. She discussed how much the library, librarians, and library resources had helped parents and children in the aftermath of the World Trade Center disaster.

All of the witnesses requested a speedy reauthorization with the funding levels set at $500 million. As the hearing came to a close, Representative Hoekstra stated that it was important to move the reauthorization speedily through the House and he intended to do so.

Senator Requests Exhumation of Meriwether Lewis

Senator Frank H. Murkowski (R-Alaska)—the ranking member of the Senate Energy and Natural Resources Committee—has requested that the National Park Service (NPS) exhume the body of frontier explorer Meriwether Lewis to determine whether he died by murder or suicide.

Historical records are not conclusive on how Lewis died though some histories label it a suicide. Lewis died in at a frontier outpost near the present day Natchez Trace Parkway, a unit of the National Park System that runs through Tennessee, Alabama, and Mississippi. According to historical sources, in the early morning hours of an October day in 1809, an innkeeper heard two shots and found Lewis fatally wounded. Lewis asked to no avail that he be killed stating, "I am no coward but I am so strong, so hard to die." He died a few hours later at the age of 35 and was buried near Hohenwald, Tennessee.

Many of Lewis's living relatives hope that the results of a study would stop the continuing speculation about the cause of their ancestor's death. Murkowski believes that science can provide a definitive answer to the question before the bicentennial of the Lewis and Clark expedition is kicked off next year. "Meriwether Lewis deserves better than to be in the middle of a mystery whose solution is within reach," stated Murkowski. "World-class scientists are standing by ready to give his family and history the answers."

Back in July 1998, the NPS denied a research request for the exhumation by James Starrs, a George Washington University professor of law and forensic sciences. Starrs has previously exhumed other historical figures including outlaw Jesse James.

NPS policy on exhumations is clear&-cut—the Service is not to disturb graves unless they are threatened with destruction by commercial or park development or natural forces. The NPS also has concerns about setting an undesirable precedent. Murkowski said that the NPS denial to Starrs back in 1998 was "filled with a number of inconsistencies" and the "thin excuses" were "simply groundless." The Service is considering the Senator's request; a decision is expected in the near future.

Invisible Ink Formula to Remain Invisible

On February 14 a federal judge agreed with CIA lawyers who argued that the now 80-year-old secret invisible ink formula should remain secret. U.S. District Judge Thomas Penfield Jackson disagreed with arguments advanced by attorneys for the James Madison Project, a nonprofit group that aims to reduce secrecy and promote government accountability, and ruled that release of the secret World War I formula—since it remains viable for use by the CIA—could compromise national security.

The legal battle over the ink formula began back in 1998 when the project asked the National Archives to identify the oldest classified document in its custody. The archives responded with six documents dealing with secret ink. The project requested copies but the request was denied.

The CIA was pleased with the ruling. According to CIA spokesman Mark Mansfield, "We don't want information that would be useful to terrorists and others who wish to harm Americans out in the public domain...Just because a document is dated doesn't mean it has lost its usefulness and sensitivity. It could be very useful to someone who wishes to communicate secretly and do harm."

More Nixon Tapes Released

On February 28, 2002, in accordance with the Presidential Recordings and Materials Preservation Act of 1974, the National Archives and Records Administration opened approximately 500 hours of White House tape recordings from the Nixon presidency. This release—the ninth set of Nixon White House tape materials released since 1980—constitutes the largest release of tapes from the National Archives at any one time. Included are approximately 426 hours of conversations that were recorded at the White House from January to June 1972. With this release, to date, NARA has opened 1,779 hours of tapes from the Nixon presidency.

The 4,127 tape segments in this release are reproduced on 1,100 cassettes. NARA has designated approximately 154 hours as personal and returnable to the Nixon estate. Approximately 4 hours are restricted for national security, as provided for in Executive Order 12958. Approximately 30 minutes are restricted for invasion of privacy, 7 ½ hours as unintelligible, and 7 ½ hours have been deemed "non-historical."

The tapes cover a wide variety of domestic and foreign topics. Of particular interest are recordings discussing the President's trip to the Peoples Republic of China, the war in Vietnam, the Watergate break-in, and a number of domestic issues including the retirement of John Mitchell, the possibility of Henry Kissinger becoming Secretary of State, John Connally's future in the Nixon Administration, and J. Edgar Hoover's successor. There is also a discussion of the assassination attempt on Governor George Wallace with H.R. Haldeman, Charles Colson and John Connally.

To assist researchers in locating conversations on the tapes, free finding aids on disc are available. The aids includes the date, time, location, and an outline of conversations, and names of participants—vital information that will help researchers locate conversations. The discs may be obtained from the Nixon Project staff at the National Archives at College Park by calling (301) 713-6950.

Kissinger Telephone Summaries to Be Released

The National Archives has received copies of more than 20,000 pages of records detailing telephone conversations of Henry Kissinger during 1969–73 when he was President Nixon's top foreign policy advisor. Kissinger routinely had secretaries tape phone calls and then type summaries detailing the conversations. It will be about a year before the documents will be opened to the public.

The records were obtained in response to a request by National Archives lawyers and continuing pressure from attorneys affiliated with the George Washington University based National Security Archive.

Last year, Kissinger agreed to release 10,000 pages of telephone summaries from 1973–1977 when he was Secretary of State. These records are still under review and have not yet been made available to the public. Kissinger has long considered the transcripts to be personal property and has routinely refused to let National Archives representatives inspect them to determine if they are government records. Kissinger, who has deeded the records to the Library of Congress but has placed restrictions on their access until five years after his death, justified the release by stating that much of the information could be found in other documents already open to the public.

New FOIA Request Record Set

According to a summary analysis entitled "Summary of Annual FOIA Reports for Fiscal Year 2000" released by the Department of Justice, the total number of Freedom of Information Act (FOIA) requests in fiscal 2000 reached a record annual high. For the first time in history, an excess of 2 million requests were received by all federal departments and agencies.

According to the report, the 2,235,201 requests are more than 13.5 percent greater than the number of requests received during FY 1999. The analysis also states that expenditures on processing requests also set a record high—$253,049,516.37. This is the first time that the reported cost figure for FOIA processing passed the quarter-billion dollar level.

—Bruce Craig is director of the National Coordinating Committee for the Promotion of History. He can be reached at rbcraig@nccph.org. For the NCC, he edits the weekly electronic newsletter targeted to historians and archivists, the NCC WASHINGTON UPDATE. A complete backfile of these reports is maintained by H–Net on the NCC's web page at http://www2.h-net.msu.edu/~ncc/.